Employee Privacy & Drug Testing in the Workplace

Employee privacy in California is protected by a number of laws, including the Fourth Amendment of the U.S. Constitution, which makes unreasonable searches illegal. The unreasonableness of a search is determined by the specific facts of each case.

Employee Privacy Expectations

If your employee claims that you violated their privacy rights by reading emails, going through their workspace, etc… Courts will consider whether the alleged intrusion was reasonable. Unfortunately for the Los Angeles business owner, predicting the reasonableness of an intrusion can be difficult.

First, courts will consider whether the type of search was more intrusive than it needed to be. Less intrusive means of searching include searching contents protected by company locks, but a greater expectation of privacy exists where the contents are protected by private combination locks. Searching desks is somewhere in the middle, while more intrusive searches are purse and bag searches, and most intrusively, body searches.

Not surprisingly, even courts have disagreed about reasonableness based on a similar fact pattern. Indeed, in the City of Ontario v. Quon, California’s Ninth Circuit found that a wireless provider violated the Stored Communications Act by disclosing pager texts for an audit; since the city’s electronic communications policy did not cover pagers, the audit violated Quon’s reasonable expectation of privacy. The CA Supreme Court disagreed with that court and overturned the decision, concluding that while an expectation of privacy did exist, the audit was limited so the search was reasonable.

Employee Drug Testing

Another hot topic in the employee privacy realm is drug testing. Whether drug testing is proper is also based on the specific facts of the case. Generally speaking, Los Angeles employers may not require random testing without a strong case that the employees being tested would pose an imminent safety or health threat if allowed to work under the influence of drugs. However, both state and federal laws impose strict alcohol and drug testing requirements on employers in commercial transportation. Employers may also require alcohol and drug testing based on facts that indicate drug or alcohol abuse, especially after a serious accident.

Remedies for various privacy violations include fines, imprisonment, punitive damages, and injunctive relief, depending on what law is violated and how. In order to avoid the potential financial ramifications of an employee privacy lawsuit, discuss your workplace policies with an experienced Los Angeles business attorney. The firm of Hart, Watters & Carter has been assisting Los Angeles businesses with these types of issues for years. Contact them today for guidance on your employee privacy issue.

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The principals of Hart & Watters bring a unique and varied background to the firm. In addition to activities listed in the following biographical sketches, you will find these dedicated individuals involved in a variety of civic organizations such as the Rotary and Lions Clubs, working on fund raising boards for local state and national charities and helping their local communities become better places to live.

Employers in California should be mindful that while California is an at-will state, meaning employees can be fired for any reason, that doesn’t always mean any reason. For example,…

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